BCDC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

BCDC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4142 (15 December 2023)
Division:GENERAL DIVISION
File Number(s): 2021/0604
Re:BCDC
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:15 December 2023
Place:Perth

The decision of the delegate of the Minister dated 30 December 2020 under s 501CA(4) of the Act not to revoke the cancellation of the Applicant’s Refugee (Class XB) (Subclass 200) visa is affirmed.
.................[Sgd].......................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – s 501CA(4) of Migration Act – decision not to revoke mandatory cancellation of visa – Applicant is a citizen of Democratic Republic of Congo – Refugee (Class XB)(Subclass 200) visa cancelled – Ministerial Direction 99 applied – extensive history of family violence – untreated alcohol abuse – lack of meaningful, recognised rehabilitation - attitude towards women – lack of support if released into community – considerations against revoking the decision to cancel the Applicant’s visa, in particular the first primary consideration, the protection of the Australian community, the second primary consideration, family violence and the fifth primary consideration, the expectations of the Australian community, outweigh the primary consideration of ties to the Australian community and the “other” considerations weighing in favour of the revocation of the cancellation – consideration of protection claims more appropriately dealt with through application for a protection visa as envisaged by para 9.1.2(2) of Direction 99 – there is not “another reason” to revoke the cancellation of the visa – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 197C, 499(1), 499(2A), 501(3A) , 501(6), 501(6)(a), 501(7), 501CA(4)
Migration Regulations 1994 (Cth) sch 2, cl 200.211(1)(a); 200.221
CASES
BCDC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1424
BCDC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1114)
BCDC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 2054
BGW22 and Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1569
Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
FYBR v Minister for Home Affairs [2019] FCA 500
Minister for Home Affairs v HSKJ [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Muggeridge v Minister for Immigration & Border Protection [2017] FCAFC 200; (2017) 255 FCR 81
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6
XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 755
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55.
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 4(1), 5.1, 5.2, 6, 7, 8, 8.1, 8.1.1(1)(a)-(e), 8.1.2(1), 8.1.2(2)(a)-(b), 8.2(1)-(3), 8.3(1)-(4), 8.4(1)-(4), 8.5(1)-(4), 9.1, 9.2, 9.3, 9.4
Commonwealth Ombudsman, Monitoring Places of Detention, Annual Report of the Commonwealth National Preventive Mechanism under the Optional Protocol to the Convention Against Torture (OPCAT), 20 January 2023
REASONS FOR DECISION
Deputy President Boyle
15 December 2023
THE APPLICATION

The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 30 December 2020[1] under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the cancellation of the Applicant’s Refugee (Class XB)(Subclass 200) visa.
[1] R1/13.
The Applicant’s visa was cancelled on 11 December 2019 under s 501(3A) of the Act[2] because the Applicant did not pass the character test by reason of having a “substantial criminal record” because he had been sentenced to a term of imprisonment of 12 months or more[3] and he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of Queensland.
[2] R1/47.
[3] R1/29.
On 17 December 2019, the Applicant made representations for the revocation of the cancellation of his visa,[4] and on 30 December 2020, a delegate of the Minister made the decision not to revoke the cancellation of the visa (see [1] above).
[4] R1/57-74.
This application is made pursuant to s 500(1)(b) of the Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Act.
ADMINISTRATIVE/JUDICIAL HISTORY
This application was initially heard by a differently constituted Tribunal which, by decision dated 14 April 2020, with written reasons dated 20 May 2021, affirmed the delegate’s decision dated 30 December 2020.[5]
[5] BCDC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1424)(BCDC 1).
By judgment dated 15 September 2021, Rangiah J quashed the decision in BCDC 1 and remitted to the matter to the Tribunal for determination according to law.[6]
[6] BCDC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1114 (BCDC 1 FC).
On remitter, by decision dated 30 June 2022, a differently constituted Tribunal affirmed the delegate’s decision dated 30 December 2020.[7]
[7] BCDC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 2054)(BCDC 2).
By orders made on 25 October 2022, Hespe J quashed the decision in BCDC 2 and issued a writ of mandamus directed to the Tribunal, requiring it to determine the application made to it for review of the decision of the delegate dated 30 December 2020, according to law. It is pursuant to that direction that the matter comes before me.
BACKGROUND
The Applicant is a 53-year-old (born June 1970) citizen of the Democratic Republic of Congo (DRC). On 19 November 2009, the Applicant and his wife and children were each granted a Refugee (Class XB) (Subclass 200) Visa (Refugee Visa).[8]
[8] BCDC 1 FC at [4].
The Applicant’s criminal record in Australia, as disclosed by the Australian Criminal Intelligence Commission Check Results Report,[9] is set out in the Annexure to these reasons for decision.
[9] R1/28-30.
On 4 March 2019, the Applicant was convicted of Enter dwelling with intent at night uses/threatens violence – Domestic violence offence and two counts of Contravention of Domestic Violence Order (DVO) (Aggravated offence) in the Brisbane District Court.
[10] R1/29.
The Applicant was sentenced to two years’ imprisonment for the enter dwelling offence, and six months’ imprisonment for one of the contravene DVO offences, with the sentences to be served concurrently.[10]
For those offences, the Applicant’s time spent in pre-sentence custody was deemed as “time already served under this sentence” and the Applicant was released to parole on 4 March 2019.
The Applicant reoffended three days later, and, on 10 April 2019, was convicted of Commit public nuisance and being intoxicated in a public place.[11]
[11] R1/29.
On 1 November 2019, the Applicant was convicted in the Richlands Magistrates Court of another count of Contravention of Domestic Violence Order (Aggravated Offence) and Breach of probation order and sentenced to imprisonment for six months and one month, respectively.[12]
[12] R1/28-29, 38.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more...
(Original emphasis.)
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Section 499(1) of the Act provides that:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that “A person or body must comply with a direction under subsection (1).”
Direction 99
On 23 January 2023, the relevant Minister for the purposes of s 499 of the Act made a direction titled “Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99). The commencement date for operation of Direction 99 was 3 March 2023. Upon its commencement, Direction 99 revoked the operation of “Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 90).
Paragraph 5.1 sets out the objectives of Direction 99. Relevantly, para 5.1 provides:
1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
...
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction 99 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke the cancellation of a visa under s 501CA of the Act. These principles are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable (sic) risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of ’he non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (sic) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable (sic) risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 99 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 99 (where such considerations are relevant) to determine whether the decision to cancel the visa under s 501(3A) of the Act should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account is found in para 7 of Direction 99 which provides that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 99 is as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9 of Direction 99 is as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
THE ISSUE FOR DETERMINATION
The issue for determination is whether I should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the Applicant’s visa under s 501(3A). This will require determination of:
(a)whether the Applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked.
THE HEARING AND THE EVIDENCE
The application was heard on 13, 14 and 28 June 2023. The Applicant was not represented at the hearing. The Minister was represented by Mr A Burgess.
The following witnesses gave oral evidence at the hearing:
(a)The Applicant;
(b)Mr Jules Masembo;
(c)the Applicant’s daughter Ms A.
The following documents were admitted into evidence:
(a)A bundle of documents prepared by the Asylum Seeker Resource Centre on behalf of the Applicant and provided to the Tribunal on 7 June 2023 (A1), comprising:
(i)The Applicant’s Statement of Issues, Facts and Contentions (Applicant’s SFIC);
(ii)Applicant’s signed statement;
(iii)Signed statement of Mr Emmanuel Amtie;
(iv)Email from Mr Jules Mosembo;
(v)Copy of signed letter from Mr Nestor Kangudia;
(vi)Copy of signed letter from Mr Djuma Kahongohongo;
(vii)Copy of Men's Referral Service agreement;
(viii)Copy of Men's Referral Service letter of engagement; and
(b)Respondent’s further Hearing Bundle filed with the Tribunal on 11 April 2023 (R1).
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law. [footnote seems to have disappeared]The character test is defined in s 501(6) of the Act (see [16] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act (see [17] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. The Applicant has been sentenced to a term of imprisonment of more than 12 months and therefore he has a substantial criminal record and, as a result, does not pass the character test.

The Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution at the time of the cancelation of his visa on 11 December 2019. I am satisfied that the elements of s 501(3A) of the Act were satisfied and that the cancellation of the Applicant’s visa under that section was valid.[13]
[13] A valid cancellation decision is a pre-condition to the valid exercise of the revocation power under s 501CA(4) of the Act – see PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14 and XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6).
As the Applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue for determination, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 99 provides that, when decision-makers are considering the protection of the Australian community, they:
(1)... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 99 relevantly provides:
1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)...
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
...
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
...
The Applicant’s SFIC dated 6 June 2023 made the following submissions and contentions relevant to this consideration:
(a)In addition to the cardinal offences, the Applicant has also been convicted of multiple offences involving public drunkenness and obstructing (resisting) police. He was remanded in prison from 23 March 2018 to 2 November 2018 and served time in prison from 7 March 2019 to 23 June 2020. The Applicant has been in immigration detention since his release from prison in on 23 June 2020.
(b)The Applicant acknowledges that the consideration of the protection of the Australian community under Direction 99 weighs against revocation of the cancellation of his visa.
(c)The Applicant’s offending “is very serious within the meaning of the Direction”.
(d)The weight of this consideration should be moderated by the Applicant’s demonstrated rehabilitation which has reduced his risk of reoffending.
(e)The Applicant’s offending took place in the context of significant alcohol addiction issues. He had not consumed alcohol before he arrived in Australia, and when he started to consume alcohol, he did so apparently without moderation, being unaware of its harmful effects.
The Minister’s Further Amended Statement of Facts, Issues and Contentions dated 10 March 2023 (Minister’s SFIC) made submissions to the following effect:
(a)The Applicant’s criminal history is marked by repeated family violence offences against or relating to his former wife, Ms B. Such offending is viewed very seriously by the Australian Government and community regardless of the sentences imposed (paragraph 8.1.1(1)(a) of Direction 99)
(b)The Enter dwelling with intent at night uses/threatens violence offence of which the Applicant was convicted involved family violence. The Applicant entered Ms B’s house in February 2018 in contravention of a protection order which had been made in December 2016. That incident involved threats against the life of Ms B including the brandishing of a knife. The Applicant’s children were present.
(c)That offence was not out of character but rather was the most serious of an escalating pattern of family violence.
(d)
In another incident of family violence, in April 2013 the Applicant returned home in a drunken state and demanded that Ms B make food for him. When the Applicant’s daughter’s boyfriend attempted to stop the Applicant verbally abusing Ms B, the Applicant brandished a fork in an aggressive manner. He smashed the boyfriend’s laptop and then assaulted Ms B, punching Ms B in the face three times causing a busted lip. This attack on Ms B was in the presence of a baby.

This incident resulted in the issue of a protection order in April 2013.
(e)In September 2019, the Applicant breached a protection order when he threatened to kill Ms B and her daughter, Ms A.
(f)The Applicant has been convicted of contravening protection orders on five occasions.[14] He was also sentenced to a 12-month probation order for contravening a protection order in 2016 but no conviction was recorded.
(g)The Applicant has committed crimes against police officers in the performance of their duties - namely, by assaulting or obstructing them in the course of arresting him for other offending. The Applicant’s 25 August 2017 assault or obstruct police conviction was for attempting to punch a female officer who was assisting paramedics attending to the Applicant, after he was found drunk and lying in a gutter. The Applicant was also convicted of wilfully damaging police property in the same course of conduct, after he urinated in the police vehicle on the way to the watchhouse. Such offending is viewed seriously by the Australian government and the Australian community (para 8.1.1(1)(b)(ii)).
(h)The Applicant’s custodial and non-custodial sentences, individually and cumulatively, reinforce the overall seriousness of his offending (para 8.1.1(1)(c)).
(i)The offences committed by the Applicant were not “out of character” as claimed by the Applicant. The progression of the Applicant’s offending from contravening protection orders to a threat of fatal harm bespeaks a trend of increasing seriousness, and the range of his offending reinforces its overall seriousness (para 8.1.1(1)(d)).
(j)The cumulative effect of the repeated offending has involved a significant allocation of public resources to deal with the Applicant’s conduct, and the infliction of harm, disruption and fear upon the victims of his offending (para 8.1.1(1)(e)).
(k)The Applicant has a concerning driving record, which includes repeatedly driving whilst under the influence of alcohol, and driving vehicles not fitted with an interlock device designed to prevent further drink driving.
(l)The Applicant’s offending is very serious.
[14] Tribunal note: the ACIC Check Results Report shows seven contraventions.
The particulars of the offences of which the Applicant was convicted in the Brisbane District Court on 4 March 2019 (see [11] above and Annexure) were set out in the Statement of Facts before the Court,[15] to which the Applicant pled guilty. They were as follows:
[15] R1/404-6.
Contravention of domestic violence order, aggravated offence
(a)The complainant was the Applicant’s daughter who, with her mother Ms B, were the named persons in the protection order. The Applicant’s daughter was, at the time, 16 years old.
(b)
On the night of 2 February 2018, the Applicant entered the residence of Ms B and her children. He went into the kitchen and then went into one of the bedrooms.

He then pointed to another bedroom door and asked his daughter if that was his wife’s bedroom. She nodded. The Applicant tried to open the bedroom door, but it was locked.
(c)The Applicant then left the house but returned later. In all the Applicant attended the house on three occasions that night, in contravention of the protection order.
Burglary, in night, with violence (Domestic violence offence) and Contravention of domestic violence order, aggravated offence
(d)The complainant was Ms B. At some time shortly after 7 pm on 17 February 2018, Ms B was resting in bed at her home. Her six-year-old daughter came into the bedroom and advised Ms B that the Applicant was in the house. Ms B stayed with her daughter in the bedroom with the light off.
(e)The Applicant went into the loungeroom and spoke to his and Ms B’s 24-year-old daughter, Ms A, who was living in the house. Ms A asked the Applicant why he was there, and he said “For me to be satisfied I need to end her life. I don’t care if I get locked up, I just need to kill her”.[16]
(f)Ms B was fearful for her life and crying, however, stayed quiet so that the Applicant would not hear her.
(g)The Applicant searched the house without finding Ms B. He then went outside to the car in which he had arrived. Ms A followed him out. The Applicant then retrieved a knife from the car and showed it to Ms A. Ms A advised that she was calling the police, which she did. The Applicant had left when police arrived.
(h)A warrant for the Applicant’s arrest was issued on 8 March 2019. On 23 March 2019, the Applicant was stopped for a random breath test and then taken to a police station. The Applicant was arrested at the police station on the warrant issued on 8 March 2019 and in relation to the incident on 2 February 2019.
[16] R1/405.
It was the sentence imposed by the Court for this incident that caused the Applicant’s visa to be cancelled under s 501(3A) of the Act.[17]
[17] Notice of visa cancellation letter: R1/48.
In cross-examination, the Applicant denied that he had entered the house. His evidence was that that was something that Ms B had “created”.[18] It was then pointed out to the Applicant by Mr Burgess for the Minister, that in his statement dated 24 May 2022,[19] a statement that the Applicant had affirmed as being true and correct,[20] he admitted that he had entered the house and had contravened the protection order on three occasions that night. When the clear inconsistencies between that statement and the Applicant’s oral evidence were pointed out, the Applicant claimed to be confused. Even taking into account that the Applicant was giving evidence through an interpreter, his evidence was unconvincing. The questions put to the Applicant were clear and uncomplicated.
[18] Transcript 14 June at 67.
[19] R1/2576.
[20] Transcript 14 June at 30-31.
I am, in any event, bound to accept the findings of fact upon which the Applicant was convicted and sentenced.[21] Those are the facts set out in the Statement of Facts before the Court on sentencing as set out in [39] above.
[21] Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234 at [40] and [45].
The Applicant was also cross-examined about an incident of family violence in 2013 which resulted in the issue of a DVO. The circumstances of that incident, taken from a Queensland Police report,[22] were put by Mr Burgess to the Applicant at the hearing as follows;[23]
(a)The Applicant returned home intoxicated.
(b)Ms B, Ms A and Ms A’s boyfriend were watching a film.
(c)The Applicant asked Ms B to prepare him food, which she did, however, he then started abusing her. Ms A’s boyfriend tried to intervene and the Applicant threatened him with a fork.
(d)The boyfriend then left the house with his laptop which he placed on the roof of his car. The Applicant grabbed the laptop, threw it to the ground smashing it and then stamped on the laptop. The boyfriend then left.
(e)Ms B had gone into the bedroom where she was asleep. The Applicant entered her room and jumped on top of her. He grabbed her by the shirt and headbutted her causing her lip to split and bleed. He then struck her three times to her face with his fist hitting her just above the eye. The baby had also received a scrape above her right eye. Ms B called the police.
[22] R1/417-8.
[23] Transcript 14 June at 45-6.
The Applicant was asked whether the facts as put to him as set out above were correct. He said that he was drunk and was sorry. He claimed however, that he had not struck Ms B, but that she had become frighted when he was shouting at her and tried to run away but she had slipped on water on the floor and hit her head.
In relation to the claim that he had smashed the boyfriend’s laptop, the Applicant’s evidence was that the boyfriend had left the laptop on the roof of the car and when he “sped away”,[24] the laptop fell off and broke.
[24] Transcript 14 June at 46.
Mr Burgess asked the Applicant about the evidence that he had given at a previous Tribunal hearing about this incident and to the Applicant’s evidence that such conduct was part of his culture and that “shouting at women was normal”. Mr Burgess asked the Applicant whether that was still his evidence. The following exchange then took place:
INTERPRETER:        Well, yelling at a woman in our culture, yes, it is still true. It’s a way of educating her. But it doesn’t mean beating her.
MR BURGESS:         What do you mean by ‘it’s a way of educating her’?
INTERPRETER:        In our culture, when you see a woman has done something wrong, you don’t softly the way Australians do it. You speak loudly. That’s our culture, and it’s throughout many cultures in Africa.
MR BURGESS:         You said before the she got scared of you because of your yelling. Is that right?
INTERPRETER:        Correct. Yes.
MR BURGESS:         Is that part of your culture as well, making her scared?
INTERPRETER:        Well, you are a man in your household. When you see something wrong, you speak loudly to a woman, yes.
The Applicant’s evidence at the hearing was that his wife, Ms B, had made up the story of him assaulting her. Mr Burgess then asked the Applicant about the statement in the police report that, when the police attended, children had come out of the house and that they appeared to be upset. As he did on a number of occasions in his cross-examination, the Applicant was non-responsive to the question asked. As Rangiah J had noted at [34] and [35] in BCDC 1 FC, the Tribunal in BCDC 1 had made the observation at [80] that the Applicant’s evidence was “difficult” and that he “gave long winded answers that were not responsive to the question asked”. That, unfortunately, was my experience as well.
At that point I asked the interpreter (Note: all of the Applicant’s evidence was given through an interpreter) to make it clear to the Applicant that he had to answer the questions that he was being asked. I then read the balance of that part of the police report which stated that:
The children told police to come inside and look at what the applicant had done to their mother.
I then asked, through the interpreter, whether the Applicant remembered the children saying that to the police. His evidence was that he did. His evidence then, however, was that it was his daughter’s boyfriend, the owner of the laptop, who had called the police.

I then asked why the children would have said what the police reported them to have said, if, as the Applicant claimed, his wife had slipped and fallen. The Applicant’s response was that he was saying sorry, and this was because of drunkenness. I pointed out his answer was, again, not responsive to the question asked.[25]
[25] (Transcript at 50).
I then read to the Applicant what the police report recorded the Applicant as having told them on the night which was that his wife had sustained her split lip when he had “approached the aggrieved – his wife, [and] she has turned from him and run into a mirror causing the split lip”. The Applicant said that he was confused so I read the same passage again (which was interpreted) and asked whether he was denying that that is what he had told the police. His response was that there was no mirror. I asked again whether he was therefore denying that he had told the police what they had recorded. His answer was that:[26]
Her lips were not split. Well, maybe that story of the mirror, maybe I said it in the drunkenness, but her lips were not torn – were not split.
[26] (Transcript at 51)
The exchange continued along the same lines without a clear answer for several more minutes. Unfortunately, this was not atypical of the evidence of the Applicant at the hearing.
In relation to this incident, I prefer the version of events of that night as set out in the police report. It was as a result of this incident that the Toowoomba Magistrates Court on 18 April 2013 made a protection order under the Queensland Domestic and Family Violence Protection Act 2012 to protect Ms B and seven children for a period of two years.[27]
[27] (R1/424).
On 1 November 2019, the Applicant was convicted of contravening a protection order on 6 September 2019. The Queensland Police court brief[28] stated that the Applicant (who was at the time subject to a Domestic Violence Protection Order) and Ms B had both arrived at their daughter A’s house. The brief said that the Applicant approached Ms B’s car and said to Ms B:
I give you both two weeks. You both will be dead. I will take my children back. You are Mutusi. You don’t believe my tribe. I will use my tribe to eliminate you. You are the enemy.
[28] R1/493.
The brief goes on the say that the Applicant then said similar words to:
You are a witch. You are a slut and a prostitute. Your private part is a rubbish bin.
The Applicant was asked about this incident at the hearing. He denied that he had said anything to Ms B and claimed that “they went and told the police this story”.[29] Asked why, if he had not behaved as described by the police, he had pled guilty to the charge of breaching the protection order that arose out of that incident, the Applicant’s evidence was that his lawyer advised him to plead guilty. His evidence was that his lawyer told him that if he pled guilty, he would be released, but if he did not, “they are going to put [the Applicant] in jail for two years”.[30]
[29] Transcript 14 June at 96.
[30] Transcript 14 June at 97.
The Applicant’s evidence at the hearing was that he was not drunk and that he had not been drinking when the incident at his daughter A’s house occurred on 6 September 2019.[31]

He agreed, however, that when the police arrested him the next morning when he was getting ready to go to work, he was, as the police report recorded, too intoxicated to be interviewed.[32]
[31] Transcript 14 June at 98.
[32] R1/493.

At the hearing, I asked Ms A about this incident on 6 September 2019. Her evidence was that the Applicant had not said anything to Ms B on that day. Her evidence was that the Applicant had come to her house to have pizza with her children and his children (she went to Ms B’s house to collect her siblings) and that after they had eaten the pizza, Ms B and “the man in her life”, Mr K, arrived and that Mr K started insulting the Applicant.[33]
[33] Transcript 28 June at 121.
Given the clear and unequivocal evidence of the Applicant’s daughter Ms A, I question the accuracy of the claims made in the Queensland Police court brief as to what the Applicant said to Ms B on that day notwithstanding the Applicant’s plea of guilty. Such a plea to the charge (if not the facts as stated) was appropriate in the circumstances even if the Applicant had not made the comments attributed to him in the court brief, because he breached the terms of the domestic violence order by being with the children.
The Applicant has been convicted of contravening protection orders on seven occasions. His first conviction was in May 2016, at which time he was sentenced to 12 months’ probation with no conviction being recorded (see Annexure). One of the subsequent breaches of a protection order was on 16 May 2016, two days after the Applicant was served with the DVO. This incident involved Ms B waking up and finding the Applicant standing next to her bed. After being told to leave, the Applicant called Ms B a prostitute, and then got into her bed with her. The Applicant’s evidence at the hearing only took issue with the claim that he got into Ms B’s bed. His initial evidence was that he got into one of the children’s beds, but then, when it was put to him, he conceded that he only did that after Ms B told him to get out of her bed.[34]
[34] Transcript 14 June at 64.
In assessing the seriousness of the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 99 relevant in this case, I find that:
(a)Paragraph 8.1.1(1)(a) – the Applicant has been convicted of crimes of violence including violence against women. The Applicant concedes that his offending includes family violence offences.[35] A number of the convictions for breaches of the protection and family violence orders involved physical assaults on Ms B. In addition to the convictions involving physical violence against Ms B, a number of the offences of which the Applicant has been convicted involved family violence as they involved threats or conduct which was coercive and/or caused the relevant family member fear. They are dealt with in more detail below under the second primary consideration, family violence.
I am obliged to take into account that the Australian Government and the Australian community consider these crimes to be very serious. In taking those views into account, I am mindful of the obligation under para 8.1(2)(a) of Direction 99 to assess for myself the seriousness of the Applicant’s offending, informed by the statement of executive policy in Direction 99 (Singh v Minister for Immigration, Citizenship and Multicultural Affairs;[36] see also Price v Minister for Immigration, Citizenship and Multicultural Affairs.[37]
(b)Paragraph 8.1.1(1)(b)(ii) – the Applicant has four convictions for assault or obstruct a police officer, which is an offence committed against a government representative in performance of their duties and falls into the category of offending that comes within this subparagraph. Again, noting the direction provided by the Courts in Singh and Price referred to in subpara (a) above of needing to make my own assessment, I take into account the Australian Government and the Australian community’s view of such offending as being considered to be serious.
(c)Paragraph 8.1.1(1)(c) – the Applicant was sentenced to terms of imprisonment on 4 March 2019 and 1 November 2019. Prior to that time, the Applicant had been fined, sentenced to terms of probation and ordered to pay restitution. Unfortunately, the leniency shown by the courts in the early years of the Applicant’s offending was not repaid.
(d)Paragraph 8.1.1(1)(d) – The Applicant has been convicted of 18 offences between August 2016 and November 2019. The Applicant’s offending must therefore be considered as frequent. The more serious of the Applicant’s offending has been the latter offending, so it can be said there is a trend of increasing seriousness.
(e)Paragraph 8.1.1(1)(e) – The Applicant’s offending has been frequent. Of particular concern is the repeat offending against his wife and the repeated breaches of a series of DVOs. After he was convicted of the enter dwelling offence on 4 March 2019 and released on parole, the Applicant proceeded to breach the DVO again on 6 September 2019 and commit further offences relating to public nuisance and breaches of other Court orders. The cumulative effect of the frequency and repetition of the same offences, with an increase in the seriousness of the offending, indicates that the Applicant is unwilling, or unable, to comply with the law. The other cumulative effect of the Applicant’s offending has been the undoubted waste of money and police and justice system resources.
The other disconcerting feature of the Applicant’s offending and conduct is the repeated threats, of the most serious kind, made against Ms B. These threats were made despite repeated warnings by the courts and police through DVOs and bail conditions, which were basically disregarded by the Applicant. The cumulative effect of the Applicant’s historical contempt for the law, particularly protection orders, coupled with his attitude towards women, most particularly his former wife, (see [46] above), is that he poses an obvious risk to a section of the community.
I also note that the Applicant has a significant driving record, which includes repeatedly driving whilst under the influence of alcohol, and driving vehicles not fitted with an interlock device designed to prevent further drink driving. Again, this shows a contempt for the law and is a threat of harm to the community.
[35] Applicant’s SFIC para 40.
[36] (2023) 296 FCR 582 at [73] per Snaden J.
[37] [2023] FCAFC 171 at [71].
As noted above, para 8.1.1(1)(a) of Direction 99 requires the decision-maker to take into account the views of the Australian Government and the Australian community that crimes of violence are to be viewed “very seriously”. Independently of that view as stated in Direction 99, the particulars of the Applicant’s record, in particular the repeated breaches of DVOs, warrant the Applicant’s criminal record as being considered to be very serious. As noted at [37(c)] above, the Applicant himself described his record as “very serious”. I agree with that characterisation.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 99 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the non citizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The Applicant’s SFIC makes no submission directly addressing this aspect of the consideration. The Minister’s SFIC submitted that the nature of the harm that would be caused if the Applicant were to reoffend could involve serious physical, psychological and financial harm to members of the community. I would normally take into account the waste of police, medical and justice resources that would be incurred if the Applicant were to reoffend as a harm to the community, however, I do not do so in light of the recent decision in Buntin v Minister for Immigration, Citizenship and Multicultural Affairs.[38] The Minister contended that potentially catastrophic harm could be inflicted if the Applicant were to act upon another threat of extreme violence in a family or domestic context.
[38] [2023] FCA 1055 at [102] - [103].
I agree with the Minister’s assessment that the harm, both physical and psychological, that would be caused should the Applicant offend as he has in the past, particularly if he were to offend violently as he has in the past,. is very serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (8.1.2(2)(b))
The Applicant’s SFIC made submissions relevant to this consideration as follows:
(a)The Applicant’s offending took place in the context of significant alcohol addiction issues. He had not consumed alcohol before he arrived in Australia, and when he started to consume it, he did so apparently without moderation, being unaware of its harmful effects.
(b)The Applicant has now abstained from alcohol since 2019, that is, since he has been in prison and immigration detention. Alcohol and other illicit substances are widely available in prison and immigration detention.[39]
[39] Citing Commonwealth Ombudsman, Monitoring Places of Detention, Annual Report of the Commonwealth National Preventive Mechanism under the Optional Protocol to the Convention Against Torture (OPCAT), 20 January 2023, 27-28.
(c)Detention is a harmful and high-risk environment for a person such as the Applicant with complex addiction issues. His abstinence in such an environment is to his credit.
(d)The Applicant has made considerable efforts to rehabilitate from his offending behaviour through courses and programs, despite the recognised difficulty of accessing such programs in immigration detention. He notes, in particular, the training that he undertook through the Men’s Referral Service throughout July and October 2022 which equipped him with tactics and techniques for controlling his feelings and emotions.
(e)He has also undertaken;
(i)Anger management 101 (certificate issued on 23 September 2021);[40]
(ii)Drug and alcohol abuse 101 (certificate issued on 21 October 2021);[41] and
(iii)Domestic violence 101 (certificate issued on 17 February 2022).[42]
(f)The Applicant is remorseful and ashamed of his offending. He has grown up as a person and is motivated to re-join the community as a positive contributor
(g)Motivating factors include maintaining a relationship with his eight children and four grandchildren in Australia and his insight into the gravity of the consequences of visa cancellation.
(h)The Applicant faces prolonged or indefinite detention should his visa remained cancelled, not to mention the prospect of being a refugee returned to his country of persecution.
(i)The Applicant has expressed a desire to join church and community groups.
(j)The correlation between is excessive alcohol consumption and his offending, noted by the previous Tribunal, has been broken by the Applicant’s sustained sobriety and remorse for his past actions.
[40] R1/1560.
[41] R1/1561.
[42] R1/2547.
The Minister’s SFIC made submissions to the following effect relevant to this consideration:
(a)There is limited independent evidence of reformative measures that the Applicant has implemented to address his offending behaviour.
(b)Since the first Tribunal proceeding, the Applicant has submitted certificates for online courses in anger management, domestic violence, and drug and alcohol abuse. The Applicant claims that these courses had taught him that:
(i)he should not drink alcohol as he cannot control his intake;
(ii)his excessive alcohol use may be related to past trauma;
(iii)he needs to respect Ms B, cannot contact her and will live outside of southeast Queensland to reduce the possibility of running into her;
(iv)he will need support if released into the community; and
(v)he should use breathing techniques, and sit down and think calmly, before reacting to a situation.
(c)Contrary to the Applicant’s claim, he is not a low risk of reoffending. The Applicant remains at an unacceptable risk of reoffending and causing potentially very serious harm to members of the Australian community.
(d)Despite the Applicant’s claim that he has newfound knowledge and understanding about the seriousness of domestic violence and that he acknowledges he must respect Ms B and her wishes, he does not take responsibility for the harm he has caused Ms B.[43]
[43] Citing the Applicant’s evidence at the hearing in the previous Tribunal matter and records of medical and counselling sessions in detention, the Applicant alleges a conspiracy between Ms B and the Applicant’s former friend, whom he calls “the Devil”, to fabricate the claims of domestic violence (R1/1084).
(e)The Applicant’s plans as to where and with whom he will live if released are vague.
(f)The Applicant’s claim that he will avoid re-offending because he will be in another state to Ms B overlooks the more basic problem, namely, his issue with alcohol and his attitude towards women. Location is not the issue. The Applicant will continue to pose an unacceptable risk of reoffending for so long as he fails to effectively address the causes of his offending.
(g)While the Applicant claims that he will seek specialised counselling in Perth, he has exhibited a pattern of failing to take advantage of the rehabilitative opportunities offered to him in the past. He was “very resistant” to engaging with a domestic violence program or a psychologist.[44] It is further reported that throughout the balance of his period of supervision by Queensland Corrective Services, the Applicant remained opposed to counselling and other suggested interventions.[45]
(h)The Applicant has provided no meaningful evidence of plans to achieve rehabilitation upon release, nor evidence of the strategies he will adopt in the meantime to prevent further offending when faced with the same stressors and risk factors as have led him into recidivist offending to date.
(i)In relation to the rehabilitation courses that the Applicant has undertaken:
(i)They are facilitated by a website called Universal Class, which appears to lack any sort of official or professional endorsement or specialisation (the website appears to also offer courses in Microsoft Office and Candle Making);
(ii)the instructors of the courses appear to be American educators, Drs Dennis and Deirdre Mithaug, who teach in areas such as psychology and cognition but do not appear to be clinicians;
(iii)there is no evidence of the contents of these courses, though it is at least apparent that they are highly generalised in nature and are not in any way personalised to an individual’s particular needs.
(j)In relation to the Applicant’s rehabilitation from alcohol abuse, his failure to meaningfully engage with rehabilitative efforts in the past indicates that he is unlikely to do so in the future, which significantly increases the risk of further offending.
[44] R1/692.
[45] R1/602-606.
The Applicant was cross-examined about his previous reluctance to engage with treatment for his alcohol addiction. He was taken to a record made by his parole officer on 19 June 2019 which stated that the Applicant “…appeared hesitant to engage advising that he can ‘cope with issues’”.[46] He agreed that at the time (June 2019) he was still drinking alcohol, yet he had told his parole officer that he was not drinking.
[46] R1/602.
The Applicant was also asked about the parole officer having recorded that the Applicant had agreed to obtain a mental health care plan and that he was given a referral to a psychologist for that purpose. He did not attend the psychologist’s appointment. He claimed that, as he was new to Brisbane, he could not find the address. He conceded that he only tried once to find the address. He advised his parole officer that counselling was not helping him.[47] He also agreed that he had been encouraged to attend domestic violence programs but that he had not done so. His evidence was that he “was getting ready to attend these meetings” but had been arrested before he had made relevant arrangements.[48]
[47] Transcript 14 June at 86.
[48] Transcript 28 June at 94.
The Applicant conceded in cross-examination that he had had periods of abstinence from alcohol and that he had, at one point, even been receiving medication to assist in that regard, but that he had, each time, relapsed into drinking which resulted in him offending.[49]
[49] Transcript 28 June at 99-100.
The Applicant’s repeat offending, particularly his apparent disregard for DVOs and his inability to address his alcohol abuse, at least while in the community, are of great concern. The conclusion to be drawn from the Applicant’s history of repeat offending, including offending when on parole and breaching parole knowing full-well what the consequences of offending and breaches of parole would be, is that the Applicant is unable or unwilling to comply with the law irrespective of the consequences. The Magistrate in sentencing the Applicant on the “contravening a domestic violence order (aggravated offence)” offence on 1 November 2019 observed:[50]
Where, for burglary with intent, at night, threatening violence, you got two years imprisonment. And for another breach of a domestic violence order, you got six months imprisonment. And you have committed this offence only six months after that sentence. That is a serious aggravating feature that it indicates that you just do not get it. How, after all this time and all of these convictions, you still do not understand that you cannot commit acts of domestic violence is beyond me. To not only breach the terms of the order, but to make death threats against your wife is both disgraceful and mind-blowingly stupid.
It must have been apparent to you, after nine years in Australia, that this country is a little bit different to the Congo. And we do not tolerate domestic violence or violence or death threats or the breaching of Court orders. So the fact that you persist in all of those things indicates that a deterrent penalty is required both to punish you and to reinforce the message to you that these things are not going to be tolerated. The fact that you have committed these offences while on parole, I have already said, is a serious aggravating feature that has the consequence that the only appropriate penalty is a further sentence of imprisonment and this time you will not have an automatic right of release on a particular day. You will have to satisfy the parole board that you are a fit person to be released. Although it seems unlikely that, upon your release, it will be back into the Australian community.
(Emphasis added).
[50] R1/37.
The Applicant’s attitude towards women (see [46] above) and his apparent inability to adapt to the norms of behaviour of the Australian community are also factors that do not augur well for the Applicant’s prospects of remaining offence-free.

Probably of greatest concern when looking at the risk of the Applicant re-offending, is the lack of meaningful rehabilitation undertaken by the Applicant. He points to the three courses referred to in [65(e)] above and to the Men’s Referral Services sessions referred to in [65(d)] above. At para 47 of his statement of 6 June 2023,[51] the Applicant described what he had learnt from the Men’s Referral Services program, conducted by telephone as follows:
I learned about anger management. I learned tactics about the “emotional mind” and controlling my feelings. For example, one tactic was breathing. If I feel myself getting angry, I can breathe three times, because if I stop and breathe, I can stop myself doing something wrong and making trouble. Another was traffic lights. My teacher taught me, if you go in your car and see a yellow traffic light, you prepare to stop. If you see red, you stop. And green is there for you to continue. He said this is like life. If you can find three ways for yourself in every situation, you can control where you go. That is how I live my life now.
[51] A1.
In that same statement the Applicant also referred to having seen a psychologist while in immigration detention, initially regularly on Christmas Island but only once since transfer to Yongah Hill Immigration Detention Centre.
At the hearing I asked the Applicant what he had learnt through the courses that he had undertaken. His evidence was that he had not undertaken any courses while in prison but had done some while in immigration detention. He identified those as being a domestic violence course, a drug and alcohol course and a course in anger management.[52]
[52] Transcript 14 June at 33.
I then asked the Applicant what he had learnt from the anger management course. His evidence was that he had learnt to control his anger as follows:[53]
…What I learnt was, if I’m angry, what I should do is to breathe three times, take a deep breath, get out of the place where this anger affected me, and then return when this anger has passed away. When it is gone.
[53] Transcript 14 June at 34.
I asked the Applicant whether he had had cause to apply this technique. His evidence was:[54]
Yes, there was a cause that gave rise to anger. I didn’t fight, but somebody provoked me because we share the same room, and my friend provoked me. I applied the technique. I went out and then when I came back, my anger was gone.
[54] Transcript 14 June at 34.
I then asked the Applicant about the drug and alcohol course. His evidence was that he could not remember how many sessions there had been in the course, which he did at Christmas Island, but thought that it could have gone over three or six months. Asked what he had learnt from that course, the Applicant’s evidence was that:[55]
What I learnt is it’s bad to abuse alcohol. When you drink – drunk, you (indistinct) thinking that they are good, and yet they are bad.
[55] Transcript 14 June at 35.
I asked the Applicant how he would avoid returning to alcohol abuse if he were to be returned to the community. His evidence was:[56]
INTERPRETER: Well, I have taken the resolve, I’ve decided to become a Christian, resume my life as a Christian, and if I go back into the community, I won’t because of, you know, being a practicing Christian. And also, I can become a teacher. I mean a teacher of people who drink heavily, because I know how bad it is.
TRIBUNAL: The Applicant had got into trouble with the government over may years, yet he kept drinking. So he knew when he was offending that he was getting into trouble as a result of drinking. Again, what would change now?
APPLICANT: I have done these two courses. I have started this domestic violence course, and drug alcohol abuse course. The other thing I didn’t really have a full comprehension of the Australian law.
[56] Ibid.
The Applicant’s evidence on what the domestic violence course had taught him was:
It is very bad. Domestic violence is very bad. It makes you damage your family, you become a bad person before the community, or in front of the community.

You become bad in every angle because domestic violence is very, very bad.
The undated letter from the Men’s Referral Services filed by the Applicant[57] described the program as “focused on the provision of short term, multi-session telephone support for men who use family violence and who are currently on a waiting list for family violence support program such as a Men’s Behaviour Change who are unable to access family violence support services…” and that “…[a]cross the multi-sessions of approximately 30 to 45-minutes an MRS men’s family violence BIS counsellor will work with a man towards accountability and always undertake a risk assessment with a priority on safety”. That cover letter advised that:
The brief intervention service is not a men’s behaviour change program (MBCP) and will not meet the requirements of a court mandated behaviour change program.
Engagement with this brief intervention service in no way assures any reduction in risk or changed behaviour.
[57] A1.
There is, in my view, merit in the Minister’s submission reproduced at [65(i)] above. There is insufficient information about those who conducted the courses, the content of the courses and the effectiveness of these course. There is no expert or independent assessment of the Applicant’s engagement with these courses or the effect that they have had on the Applicant. The same comments apply to the fourth course undertaken by the Applicant, that conducted by the Men’s Referral Services. The Men’s Referral Services’ own material[58] states that it “is not a men’s behaviour change program” and that [e]ngagement with this brief intervention service in no way assures any reduction in risk or changed behaviour”. A frank observation, but not particularly reassuring. The Applicant’s evidence as to what he learnt from the courses does not provide any comfort that he has obtained greater insight into the causes of his offending or how, in any practical sense, his risk of reoffending as he has in the past, or his risk of slipping back into alcohol abuse, has materially changed.
[58] A1.
Mr Burgess in closing submissions summarised the position, in my view accurately, as being:
… Notwithstanding the [A]pplicant says that he’s sorry and remorseful he maintains, in his evidence before the tribunal, that he was effectively set up by his wife, the victim, and demonstrates a lack of insight into his offending. The [A]pplicant has had no meaningful plans for rehabilitation and has only completed very limited rehabilitative courses. He was unable to provide any real demonstration of what he’d learnt in those courses, other than saying the anger management classes taught him to breathe deeply, the drug and alcohol course taught him that drinking was bad, and the domestic violence course taught him that domestic violence was very, very, very bad, to the extent that the applicant, in his most recent statement at paragraph 14 [of the Applicant’s SFIC at A1], says that he has undertaken a behavioural change program with the Men’s Referral Service. That is not consistent with the documents produced from the Men’s Referral Service which specifically state the brief intervention service is not a men’s behavioural change program and does not meet the requirements of a court-mandated behavioural change program.
Also as correctly pointed out by Mr Burgess, while the Applicant has in the past been able to remain abstinent from alcohol or at least, as the Applicant put it, “drastically reduced drinking”[59] he has on each occasion slipped back into alcohol abuse with, it seems, the inevitable consequence of repeat offending.
[59] Transcript 28 June at 93.
While letters of support have been provided by a range of community members, the Applicant’s daughter and community organisations and churches, these are not sufficient to provide comfort that the Applicant will not revert to his long-standing and unaddressed alcohol abuse and resultant offending. These letters/statements include:
(a)Mr Amtie’s (who met the Applicant in immigration detention) statement dated 6 June 2023;[60]
(b)Mr Mosembo’s statement dated 17 April 2023 and his evidence at the hearing;[61]
(c)The letter dated 10 March 2023 from Djuma Kahongohongo of the Toowoomba Congolese Community;[62]
(d)The letter dated 6 March 2023 from the Buenamuntu Association of Queensland.[63]
(e)The statements of the Applicant’s daughter, Ms A,[64] and her evidence at the hearing;[65]
(f)Letters of support and statements submitted in the previous Tribunal hearings[66] and the evidence tendered and given in those hearings.
[60] A1.
[61] A1 and Transcript 28 June at 104 -109.
[62] A1.
[63] A1.
[64] R1/1049 and 2660.
[65] Transcript 28 June at 112 – 125.
[66] R1/2662-3.
While I do not doubt the sincerity of those who gave the statements, letters and evidence, in these and previous proceedings, they do not provide substantial evidence to support a conclusion that the Applicant is not a risk of reoffending. Insofar as they contain pledges of support if the Applicant were to be returned into the community, the same support was available when the Applicant offended previously. The factors that would normally be considered as stabilising factors, including his family and his church, were all present when the Applicant offended in the past.
Similarly, while the Applicant’s several written statements and his evidence at the hearing were to the effect that the Applicant will not reoffend, and that may be the Applicant’s intention, his history of offending and repeated return to drinking even while on parole and subject to DVOs, indicate that the Applicant lacks sufficient will or ability to remain alcohol abstinent and not to offend as he has repeatedly done in the past.
While a person is not destined to repeat history, a person’s past conduct is a guide to future conduct in similar circumstances unless there has been a change in the psyche or the personal circumstances of the person.[67] In the case of the Applicant, I am not satisfied that there has been such a change. The Applicant has not undertaken relevant, recognised programs which could be accepted as reducing his risk of offending as he has in the past to any significant degree. Notwithstanding that the Applicant has remained alcohol free since his imprisonment, I am not satisfied that his attitude towards his offending, to alcohol and to women has materially changed from when he offended.
[67]As noted by Hespe J in BGW22 and Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1569 [46]-[47] “as has been recognised … (by the High Court in Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 575 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ), determining what is likely to happen in the future will invariably require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future (see also Muggeridge v Minister for Immigration & Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 at 91 [36] (Charlesworth J, Flick J concurring at 83 [1], Perry J concurring at 83 [2]”
I assess the Applicant to be a high risk of reoffending. The harm that would be caused should the Applicant engage in the offending behaviour that he has in the past is very serious (see [64] above). Accordingly, this first this first primary consideration, the protection of the Australian community, weighs heavily against revocation of the cancellation of the Applicant’s.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 99 provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non citizen's migration status, should the non- citizen engage in further acts of family violence.
Paragraph 4(1) of Direction 99 relevantly defines family violence as follows:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property;
...
(Original emphasis)
Member of a person’s family is defined in para 4(1) of Direction 99 as follows:
member of person’s family, for the purpose of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.
(Original emphasis)
The Applicant’s SFIC submitted that the Applicant has addressed the causes of his offending by learning strategies to control his behaviour through the Domestic Violence 101 and Men’s Referral Services course and has addressed the “underlying causes of his family violence through his abstinence from alcohol as well as his engagement in programs”.[68] I have addressed the Applicant’s engagement with those programs and their efficacy in [67]-[85] above.
[68] Applicant’s SFIC para 41.
The Minister’s SFIC made submissions to the following effect:
(a)The Applicant has committed multiple acts of family violence and on multiple occasions has breached Court orders designed to prevent further family violence. The Applicant’s family violence offending has been frequent, and the cumulative effect of his repeat offending aggravates its seriousness (paragraphs 8.2(3)(a)-(b))
(b)The Applicant continues to deny responsibility for the most serious aspects of his family violence offending and to blame other people for fabricating claims of family violence. (paras 8.2(3)(c)(i)-(ii)).
(c)The Applicant has not sufficiently addressed his alcohol abuse, which has been a recurrent factor in his offending, and he has not achieved the level of rehabilitation as might mitigate in any way the seriousness of his family violence offending (para 8.2(3)(c)(iii)).
(d)The Applicant has continued to perpetrate acts of family violence despite being warned by various courts about the consequences of further offending (para 8.2(3)(d)).
(e)The Applicant’s family violence should be viewed very seriously such that the Tribunal should give significant weight to the Government’s serious concerns about conferring the privilege of remaining in Australia on non-citizens such as the Applicant who engage in family violence.
The Applicant’s offending and other conduct include numerous incidents of family violence. The Applicant’s SFIC conceded that his offending history included family violence offences.[69] At para 20 of his statement dated 6 June 2023, the Applicant stated:
I acknowledge that I have engaged in physical violence against my wife and repeatedly breached Court orders and I acknowledge that my offending was serious and had a significant impact on my wife, children, and the community.

I recognise that my actions were harmful and inexcusable, and I take responsibility for the harm I have caused.
[69] Applicant’s SFIC para 40.
The physical assault on Ms B in April 2013, which resulted in Ms B having a split lip, was clearly an assault for the purposes of sub para (a) of the definition of family violence in para 4(1) of Direction 99 (see [88] above). Ms B, the mother of the Applicant’s children, was in or had been in an intimate personal relationship with the Applicant at the time of the various incidents, including at the time of the breaches of DVOs. She was and is therefore a member of the Applicant’s family as that term is defined in Direction 99 (see [89] above). At least two of the breaches of DVO also involved “threatening…behaviour that coerces or controls… or causes the family member to be fearful” (see [39] and [43] above) and thus family violence.
While the Applicant has seven convictions for breaches of DVOs (as well as breaches of bail conditions relating to approaching protected persons), not all of the incidents that gave rise to those convictions would come within the definition of family violence under Direction 99. For instance, a breach of a DVO by the Applicant contacting his children who were also protected under the DVOs, while a breach of the DVO, would not be family violence for the purposes of Direction 99.
Considering the factors listed in para 8.2(3) of Direction 99, the Applicant’s relevant offending and other behaviour has been frequent. As the most physically violent of the incidents, that which occurred in April 2013, was not the most recent, I would not consider there to be a discernible trend of increasing seriousness (subpara (a)).
As noted earlier, the cumulative effect of the Applicant’s repeated acts of family violence, apart from causing Ms B physical harm, and potentially, the children to be fearful, is that it is demonstrative of a poor attitude that the Applicant has towards women. His evidence at the hearing (see [46] above) basically confirmed that the Applicant’s attitude has not changed (subpara (b))
I have commented on the Applicant’s rehabilitation, or more accurately the lack of meaningful rehabilitation, above (see [85] and [93] above).
In relation to para 8.2(3)(d), the Applicant has been repeatedly warned by the Courts about the need to address his behaviour and his repeated acts of family, or at least domestic, violence, he still offended, in one case within two days of being served with a DVO (see [59] above).
All acts of family violence are unacceptable and are to be viewed very seriously, however, in the present case the degree of physicality, and therefore injury caused, was relatively limited. I also note that while there were a number of acts of family violence, they were committed when the Applicant was influenced by alcohol. The obvious concern, however, is that while the family violence may have been committed, in some but not all cases when the Applicant was under the influence of alcohol, he did virtually nothing to address the causes of his behaviour and his attitude while he was in the community and not much more since he has been imprisoned and detained.[70]
[70] See above para [68].

The Minster’s SFIC made submissions to the following effect:
(a)The Applicant is not a person covered by a protection finding. The Applicant claims to be owed protection and non-refoulement obligations on the basis that he fears harm, and possibly death, if returned to the DRC. That claim is made both on the basis upon which he was previously granted a Refugee visa in 2009, as well as his status as a person removed from Australia on ‘criminal justice grounds’.
(b)Direction 99 provides that it is not necessary at the s 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The Direction recognises that the process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act (paragraph 9.1.2(2)).
(c)Plaintiff M1/2021 supports the proposition that the Tribunal in this case is entitled to defer assessment of whether the Applicant is a person in respect of whom non-refoulement obligations are owed on the basis that it is open for him to apply for a protection visa.
(d)None of those reasons, individually or together, provide a sufficient reason for the Tribunal to determine in this review whether non-refoulement obligations are owed. Plaintiff M1/2021 does not require it.
(e)While the Applicant has advanced clear claims to fear harm should he be returned to the DRC, and while the Tribunal must consider those claims, the Tribunal need not, and should not, take the further step of determining whether the Applicant is a person in respect of whom non-refoulement obligations are owed. The most appropriate avenue for the determination of nonrefoulement claims is the separate legislative and administrative mechanism available for consideration of protection visa applications.
(f)The Applicant claims that the source of any harm would be “rebels” because he was a member of the Nande tribe and that he would be at risk of harm from either “government soldiers or members of a pro-government militia”.
(g)The Applicant has presented no credible evidence in support of the claim that he has a specific profile such that he is at any appreciable risk of such harm now or in the foreseeable future and the Applicant’s claims lack adequate detail or specificity.
(h)The Applicant claims that he still faces the same harm that he faced in 2009 when he was assessed by UNHCR. However, Australia’s non-refoulement obligations are forward-looking. Despite the claims previously accepted, there is no probative evidence before the Tribunal to suggest that the Applicant would now face harm in the DRC giving rise to non-refoulement obligations. The Tribunal should not place weight on the reports by Dr Ngendakurio filed in the previous proceedings. His opinions not, constitute materially probative evidence in support of the Applicant’s claims. Further, the opinions expressed by Dr Ngendakurio are at odds with independent evidence before the Tribunal.
(i)In the circumstances, there is no reliable evidence to suggest that any risk of harm would be a risk faced by the Applicant personally and not by the Congolese population at large. Overall, there is a critical lack of evidence capable of supporting a finding that the Applicant faces a risk of harm on return to the DRC engaging Australia’s non-refoulement obligations as reflected in the Act.
It is undoubtedly the case, as is conceded by the Minister, that the Applicant has raised claims to be owed non-refoulement obligations on the bases set out in his SFIC (see [137(a)-(e)] above). More recently the Applicant in paras 28 to 33 of his statement dated 6 June 2023 set out his reasons for fearing persecution if he is returned to DRC. As the Minister pointed out, correctly in my view, some of the evidence upon which the Applicant relies is potentially out of date now and, in some cases (in particular that of Dr Ngendakurio)[90], is of questionable probative value. I note that the Applicant’s SFIC in these proceedings, prepared by his very experienced lawyers, did not refer to the evidence of Dr Ngendakurio. It may well be that the Applicant is owed protection and non-refoulement obligations, however, I agree with the Minister’s contention that the more appropriate course is for the Tribunal to adopt the course available under para 9.1.2 of Direction 99 of deferring the detailed consideration of the non-refoulement issues and leaving that detailed consideration to the “specifically designed” (9.1.2(2)) process of a protection visa application. That course would also enable the Applicant to address some of the issues and deficiencies with the Applicant’s present evidence identified by the Minister. Making an application for a protection visa would also mean that the Applicant would be entitled (in all but exceptional cases) to the grant of a bridging visa and would not be subject to removal under s 198 of the Act.[91]
[90] Draft statement of Dr J B Ngendakurio dated 22 May 2022, in R1 at 2871.
[91] The explanatory memorandum to the Migration Amendment (Bridging Visa Conditions) Bill 2023 notes:
For any member of the cohort who does not have a ‘protection finding’ but makes protection claims, there will be opportunity to have those claims considered though a protection visa process or through consideration of ministerial intervention pathways where relevant.
I do not accept the Applicant’s submissions as to the inevitability of an application for a protection visa being unsuccessful. That is speculation. I do, however, agree with the Applicant’s contention that, even if I go down the path of having the issue of protection and non-refoulement obligations assessed through the purpose-designed process of a protection visa application, I should still give some weight to the Applicant’s claims to fear harm if returned to the DRC. While I do not accept that an application for a protection visa is doomed to failure, I do accept that, even if the Applicant were to make an application for a protection visa, until that application was resolved the Applicant would be subject to continued detention for a potentially extended period.
Accordingly, I give weight to the non-refoulement related claims made by the Applicant, however, because at the end of the day they will (or should) be determined through the more appropriate process of a protection visa application, only minor weight should be given to this consideration. The Applicant has “indicated” that he may not make an application for a protection visa if the decision in this application goes against him. That will be his choice. I am, however, entitled to assume that if the Applicant is owed protection and non-refoulement obligations and is entitled to make an application for a protection visa, that process will establish whether such obligations are owed. That is the course assumed by para 9.1.2(2) of Direction 99.[92]
[92] WKMZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 [149]; (2021) FCR 463.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 99 provides:
(1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Applicant’s SFIC submitted that Plaintiff M1/2021 is authority for the principle that a decision-maker may need to take account of the facts underpinning a protection claim where they support impediments to return. In addition, the Applicant submitted that:
(a)He has no family or friends in DRC;
(b)He would not see his children or family in Australia again;
(c)He would face extreme hardship in terms of his ability obtain work, housing, healthcare and generally the ability to subsist;
(d)He has not lived in DRC since 2006;
(e)He would face persecution as a refugee in the terms previously recognised by the Australian Government;
(f)He may face additional hardship as a returned refugee.
The Minister’s SFIC contended that:
(a)Even if the fear of harm raised by the Applicant does not reach a level sufficient to enliven Australia’s non-refoulement obligations, the Minister accepts that that the security situation in the DRC, both in the Applicant’s home province of [province] and elsewhere, may present difficulties in the Applicant re-establishing himself.
(b)There is nothing to suggest, however, that the Applicant will be treated with suspicion in, or excluded from, Kinshasa, the DRC capital, on the basis that he is a Nande person if he attempts to relocate there.
(c)The Minister accepts that this consideration weighs in the Applicant’s favour. However, the weight to be attributed to this consideration is moderated by the fact that the Applicant spent most of his life in DRC, he speaks French and Swahili and is in good health.
(d)While the Applicant may face difficulty re-establishing himself in the DRC, the evidence does not demonstrate that the impediments would be insurmountable.
The relevant consideration as directed by Direction 99, is whether, taking into account the considerations identified in sub-paras 9.2(1)(a), (b) and (c) and anything else raised by the Applicant, the Applicant would face an impediment (or impediments) in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of DRC enjoy. The test is not whether he would be worse off or enjoy a lower living standard than he would if he were allowed to stay in Australia.
While the Applicant does not suffer from any disclosed medical condition which would preclude him from working (noting that he has been treated for anxiety and depression and has an old injury to his shoulder), I accept that the Applicant will face hurdles, if not impediments, in establishing himself in DRC. Based on the country information, I accept that it is likely that the Applicant will face difficulties in establishing and maintaining basic living standards because of his ethnicity and his background. This includes the possibility of harassment from his political enemies. I note that the Minster accepts that the security situation in the DRC, both in the Applicant’s home province of [province] and elsewhere, may present difficulties in the Applicant re-establishing himself. I also accept that the Applicant’s problems with alcohol, which I have found to have a high risk of recurring, would be an impediment to the Applicant establishing and maintaining a basic living standard.
Separation from his family would also be an impediment, at least emotionally, to the Applicant establishing and maintaining himself in the DRC. While his contact, or at least meaningful physical contact, with his family had been minimal for a number of years, I accept that the emotional toll that his being separated from them, potentially forever, will impact the Applicant’s ability to establish and maintain himself.
None of the impediments that I have identified would be insurmountable. Nonetheless, I find that this consideration, impediments to establishing and maintaining basic living standards, weighs moderately in favour of the revocation of the cancellation of the Applicant’s visa.
The Applicant’s SFIC made no submission on the considerations of the impact on victims (9(1)(c) or the impact on Australian business interests (9(1)(d)) and the Minister’s AFIC commented that there was no evidence that either of these ‘other considerations’ arise as relevant in this case. I agree with the Minister’s contention.
THE WEIGHING EXERCISE
Direction 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account (see [25] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under earlier Ministerial Directions issued under s 499 of the Act (see [21] above), the same considerations apply to the exercise required by Direction 99 which is materially in the same terms to those earlier Ministerial Directions. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[93] and the Full Court judgment in Minister for Home Affairs v HSKJ.[94] See also XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs[95] for analysis of those cases.
[93] [2018] FCA 594.
[94] [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591.
[95] [2023] AATA 755 at [182]- [183].
More recently the Full Court of the Federal Court considered the operation of Direction 90 (relevantly materially the same as Direction 99) in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[96] At [35] the Full Court described the process as follows:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
[96] [2023] FCAFC 138.
In criticising the Tribunal’s reasons, the Full Court at [38] found:
...They do not disclose that there was any process by which the Tribunal grappled with the competing considerations, each of which had been ascribed a different descriptor of weight and some of which had the status of being “primary” considerations and others not, in order to bring them to bear in forming a state of satisfaction as to whether there was “another reason” to revoke the cancellation. The statutory task is not fulfilled by ascribing a descriptor of weight, such as “strong”, “significant”, “considerable” or “moderate” (in favour of or against revocation) to the different considerations, primary and other, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula.
And at [43]:
... the Tribunal recognised in paragraph [113] that it was required to weigh “all the Considerations” (emphasis added), and because it had expressly gone through the process of considering each of the “other considerations in turn”, as explained above, it cannot be concluded that the Tribunal failed to consider the “other considerations”. However, there is nothing in the concluding section of the Tribunal’s reasons, or indeed anywhere, which reveals any process of balancing and evaluation... Nor is there anything which demonstrates that in reaching its ultimate conclusion, the Tribunal brought to bear its assessment of the weight of the various “other considerations”. After summarising, and rephrasing, its earlier ascription of descriptors of weight to each of the primary considerations, the Tribunal then simply concluded in paragraphs [114] and [115] by use of the words “therefore” and “consequently” that the visa cancellation should not be revoked. Such a conclusion does not inevitably or necessarily follow from those unexplained, un-balanced and un-weighed descriptors of weight; it may be that such a conclusion is justified by what preceded it but it is not apparent that the Tribunal undertook the required process of evaluation in order to reach its decision. It is not even apparent that the Tribunal considered that the weight of all the primary considerations were compelling against revocation of the cancellation of the visa, since it placed “significant weight” on one of those considerations, the interests of minor children, as favouring revocation.
And at [44]:
...What it did, on the face of its reasons, is ascribe weight to the various considerations having considered each in isolation and then express a conclusion without demonstrating that it actually weighed the various considerations against each other and undertook a proper evaluation of whether there was indeed “another reason” why the cancellation should be revoked.
What I understand the Full Court to be saying is that giving a weight to each consideration by ascribing a particular quantitative or qualitative adjective and then stating a conclusion without explaining how the conclusion flows from or arises out of a described process of assessing the weight of each consideration against each other consideration, is not discharging the statutory function. Applying those principles to the case of the exercise of being “satisfied ... that there is another reason why the original decision should be revoked” (s 501CA(4)(b)(ii)), I take the Full Court to be directing the decision-maker to give appropriate weight to each relevant consideration, explain why such weight is given to the consideration and then, through a described, logical process, compare and balance all of the applicable considerations to determine whether there is another reason why the original decision should be revoked.
Following the above-described process, I have ascribed a weight to each of the relevant considerations under Direction 99 and explained the basis upon which I have assessed the weight. What remains is to compare and balance the considerations to determine whether I am satisfied that there is another reason why the original decision should be revoked.
Following the direction provided by the above cases, I find that the first primary consideration, the protection of the Australian community, weighs heavily against revocation of the cancellation of the Applicant’s visa (see [88] above).
The second primary consideration, family violence committed by the Applicant, weighs heavily against the revocation of the cancellation of the Applicant’s visa (see [102] above)
The third primary consideration, the strength, nature and duration of the Applicant’s ties to Australia, weighs in favour of revoking the cancellation of the Applicant’s visa, however, only minor weight can be given to it (see [111] above)
The fourth primary consideration, the best interests of minor children in Australia affected by the decision, does not weigh in favour of revoking the cancellation of the Applicant’s visa (see [121] above). It is to be treated as neutral.
I find that the fifth primary consideration, the expectations of the Australian community, weighs heavily against the revocation of the cancellation of the Applicant’s visa (see [133] above).
In relation to the “other considerations” identified in Direction 99, I find that the consideration of the legal consequences of the decision weighs in favour of revocation of the cancellation of the Applicant’s visa, but that only minor weight should be given to this consideration (see [142] above).

The other relevant consideration of extent of impediments if removed weighs moderately in favour of the revocation of the cancellation of the Applicant’s visa (see [149] above).
The two remaining “other considerations” are not relevant.
I am mindful that para 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations (see [25] above). Nothing has been presented which would indicate that that general principle should not apply in the present case. Having weighed the considerations in favour of revoking the decision to cancel that Applicant’s visa and those against revoking the decision to cancel the Applicant’s visa, I find that the considerations against revoking the decision to cancel the Applicant’s visa, in particular the first primary consideration, the protection of the Australian community, the second primary consideration, family violence and the fifth primary consideration, the expectations of the Australian community, outweigh the primary consideration of ties to the Australian community and the “other” considerations weighing in favour of the revocation of the cancellation of the Applicant’s visa, namely the legal consequences of the decision and impediments if removed. Accordingly, I find that there is not another reason why the original decision should be revoked.

DECISION
The decision of the delegate of the Minister dated 30 December 2020 under s 501CA(4) of the Act not to revoke the cancellation of the Applicant’s Refugee (Class XB)(Subclass 200) visa is affirmed.

167. I certify that the preceding 166 (one hundred and sixty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...........[Sgd].............................................................
Associate
Dated: 15 December 2023

Date(s) of hearing:

13, 14 and 28 June 2023

Applicant:

In person

Solicitors for the Respondent:

Mr A Burgess, Sparke Helmore Lawyers

ANNEXURE
Table of offences

Date Of Conviction Court Offence Result

01/11/2019 Richlands Magistrates Court Breach of probation order
imposed on 17/04/2019 (re:
breach of bail condition x2)
For breach of order(s):
Conviction recorded
Fined: $600.00

Refer to sper

order(s) revoked Resentenced for original
offence(s)
On all charges:
conviction recorded
Sentenced
imprisonment: 1mo
concurrent
parole eligibility date:
01/11/2019

01/11/2019 Richlands Magistrates Court [DFVPA2012] 177(2)(A)
Contravention of domestic
violence order (aggravated
offence) (on 06/09/2019) Conviction recorded:
Sentenced
Imprisonment: 6mo
cumulative
Parole Eligibility date: 01/11/2019

17/04/2019 Caboolture Magistrates Court
[BA] 29(1) Breach of bail
condition (between 25/12/2018
and 05/03/2019)

[BA] 29(1) Breach of bail
condition (between 23/02/2019
and 02/03/2019)
On all charges:
Conviction recorded
Probation
period: 6mo

10/04/2019 Richlands Magistrates Court
[SOA] 6(1) Commit public
nuisance (on 07/03/2019)

[SOA] 10 Being intoxicated in a public place (on 07/03/2019)

On all charges
Conviction recorded

Fined: $900.00

Time to pay: 28d

04/03/2019 Brisbane District Court
CC 419(1)&(3)(a)&(3)(b)(i)&564(3a)
enter dwelling with intent at night uses/threatens
violence - domestic violence offence
(on 17/02/2018)

DFVPA2012 177(2)(a)

Contravention of domestic
violence order (aggravated
offence) (on 17/02/2018)
Above refers to indictment
no: 2666/18

DFVPA2012 177(2)(a)
Contravention of domestic
violence order (aggravated
offence) (on 02/02/2018)
Above refers to indictment
no: 310/19

Conviction recorded

Sentenced
imprisonment: 2y
concurrent
Declare that time spent
in pre-sentence custody
be deemed as time already served under this sentence:
224 days (btn 22/03/2018 &
02/11/2018)
Parole release date:
04/03/2019

Conviction recorded
not further punished

Conviction recorded
Sentenced
imprisonment: 6mo
concurrent
Parole release date:
04/03/2019

06/02/2019 Caboolture Magistrates Court [PPRA] 791(2) Contravene
direction or requirement
(between 14/12/2018 and
22/12/2018) Conviction recorded
Fined: $100.00
Time to pay: 28d

16/01/2019 Caboolture Magistrates Court [BA] 29(1) Breach of bail
condition (on 15/12/2018) Conviction recorded
Fined: $200.00
Time to pay: 2mo

13/11/2017 Ipswich Magistrates Court [CC] 469(1) Wilful damage (on
19/05/2016) Conviction recorded
Fined: $250.00
Time to pay: 28d
compensation: $239.20

25/08/2017 Ipswich Magistrates Court [PPRA] 790(1) Assault or
obstruct police officer (on
30/03/2017)
Conviction recorded

Fined: $150.00

Time to pay: 28d

10/01/2017 Ipswich Magistrates Court [DFVPA2012] 177(2)(a)
Contravention of domestic
violence order (aggravated
offence) (on 26/05/2016) Conviction recorded
Probation
period: 9mo

23/11/2016 Ipswich Magistrates Court
[SOA] 10 Being intoxicated in a
public place (on 16/09/2016)

[PPRA] 790(1)&(2a) Assault or
obstruct police officer in
public place while adversely
affected by intoxicating
substance (on 16/09/2016)

[CC] 469(1)&10.12(2) Wilful
damage of police property
(on 16/09/2016)

On all charges:
Conviction recorded

Fined: $400.00

in default Imprisonment: 3d
Time to pay: 28d

Restitution: $121.00

Time to pay: 28d

29/08/2016 Ipswich Magistrates Court [DFVPA2012] 177(2)(B)
Contravention of domestic
violence order (on 19/07/2016) Conviction recorded
Fined: $300.00
Time to pay: 28d

30/06/2016 Ipswich Magistrates Court [SOA] 6(1) Commit public
nuisance (on 19/05/2016) No conviction recorded
Fined: $400.00
Time to pay: 28d

30/05/2016 Ipswich Magistrates Court
[DFVPA2012] 177(2)(B)
Contravention Of Domestic
Violence Order
(On 14/05/2016)

[DFVPA2012] 177(2)(B)
Contravention Of Domestic
Violence Order
(On 16/05/2016)

[PPRA] 790(1)&(2a)&47(9) Assault or Obstruct Police Officer in Public Place while
adversely affected by
Intoxicating Substance -
Domestic Violence Offence
(On 16/05/2016)
On all charges:
No conviction recorded
Probation
period: 12mo

16/09/2014 Toowoomba Magistrates Court [SOA] 6(1) Commit public
nuisance (on 31/08/2014)
bcs1403030097
[PPRA] 790(1) Assault or
obstruct police officer (on
31/08/2014) On all charges:
No conviction recorded
Fined: $600.00
Time to pay: 28d

Tribunal note: a person found to be owed protection obligations will not be removed under s 198 (s 197C).

A person applying for a protection visa will, ordinarily, be entitled to a bridging visa which will also prevent removal under s 198)

[2023] AATA 4142

15 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date(s) of hearing:	13, 14 and 28 June 2023
Applicant:	In person
Solicitors for the Respondent:	Mr A Burgess, Sparke Helmore Lawyers

Date Of Conviction	Court	Offence	Result
01/11/2019	Richlands Magistrates Court	Breach of probation order imposed on 17/04/2019 (re: breach of bail condition x2)	For breach of order(s): Conviction recorded Fined: $600.00 Refer to sper order(s) revoked Resentenced for original offence(s) On all charges: conviction recorded Sentenced imprisonment: 1mo concurrent parole eligibility date: 01/11/2019
01/11/2019	Richlands Magistrates Court	[DFVPA2012] 177(2)(A) Contravention of domestic violence order (aggravated offence) (on 06/09/2019)	Conviction recorded: Sentenced Imprisonment: 6mo cumulative Parole Eligibility date: 01/11/2019
17/04/2019	Caboolture Magistrates Court	[BA] 29(1) Breach of bail condition (between 25/12/2018 and 05/03/2019) [BA] 29(1) Breach of bail condition (between 23/02/2019 and 02/03/2019)	On all charges: Conviction recorded Probation period: 6mo
10/04/2019	Richlands Magistrates Court	[SOA] 6(1) Commit public nuisance (on 07/03/2019) [SOA] 10 Being intoxicated in a public place (on 07/03/2019)	On all charges Conviction recorded Fined: $900.00 Time to pay: 28d
04/03/2019	Brisbane District Court	CC 419(1)&(3)(a)&(3)(b)(i)&564(3a) enter dwelling with intent at night uses/threatens violence - domestic violence offence (on 17/02/2018) DFVPA2012 177(2)(a) Contravention of domestic violence order (aggravated offence) (on 17/02/2018) Above refers to indictment no: 2666/18 DFVPA2012 177(2)(a) Contravention of domestic violence order (aggravated offence) (on 02/02/2018) Above refers to indictment no: 310/19	Conviction recorded Sentenced imprisonment: 2y concurrent Declare that time spent in pre-sentence custody be deemed as time already served under this sentence: 224 days (btn 22/03/2018 & 02/11/2018) Parole release date: 04/03/2019 Conviction recorded not further punished Conviction recorded Sentenced imprisonment: 6mo concurrent Parole release date: 04/03/2019
06/02/2019	Caboolture Magistrates Court	[PPRA] 791(2) Contravene direction or requirement (between 14/12/2018 and 22/12/2018)	Conviction recorded Fined: $100.00 Time to pay: 28d
16/01/2019	Caboolture Magistrates Court	[BA] 29(1) Breach of bail condition (on 15/12/2018)	Conviction recorded Fined: $200.00 Time to pay: 2mo
13/11/2017	Ipswich Magistrates Court	[CC] 469(1) Wilful damage (on 19/05/2016)	Conviction recorded Fined: $250.00 Time to pay: 28d compensation: $239.20
25/08/2017	Ipswich Magistrates Court	[PPRA] 790(1) Assault or obstruct police officer (on 30/03/2017)	Conviction recorded Fined: $150.00 Time to pay: 28d
10/01/2017	Ipswich Magistrates Court	[DFVPA2012] 177(2)(a) Contravention of domestic violence order (aggravated offence) (on 26/05/2016)	Conviction recorded Probation period: 9mo
23/11/2016	Ipswich Magistrates Court	[SOA] 10 Being intoxicated in a public place (on 16/09/2016) [PPRA] 790(1)&(2a) Assault or obstruct police officer in public place while adversely affected by intoxicating substance (on 16/09/2016) [CC] 469(1)&10.12(2) Wilful damage of police property (on 16/09/2016)	On all charges: Conviction recorded Fined: $400.00 in default Imprisonment: 3d Time to pay: 28d Restitution: $121.00 Time to pay: 28d
29/08/2016	Ipswich Magistrates Court	[DFVPA2012] 177(2)(B) Contravention of domestic violence order (on 19/07/2016)	Conviction recorded Fined: $300.00 Time to pay: 28d
30/06/2016	Ipswich Magistrates Court	[SOA] 6(1) Commit public nuisance (on 19/05/2016)	No conviction recorded Fined: $400.00 Time to pay: 28d
30/05/2016	Ipswich Magistrates Court	[DFVPA2012] 177(2)(B) Contravention Of Domestic Violence Order (On 14/05/2016) [DFVPA2012] 177(2)(B) Contravention Of Domestic Violence Order (On 16/05/2016) [PPRA] 790(1)&(2a)&47(9) Assault or Obstruct Police Officer in Public Place while adversely affected by Intoxicating Substance - Domestic Violence Offence (On 16/05/2016)	On all charges: No conviction recorded Probation period: 12mo
16/09/2014	Toowoomba Magistrates Court	[SOA] 6(1) Commit public nuisance (on 31/08/2014) bcs1403030097 [PPRA] 790(1) Assault or obstruct police officer (on 31/08/2014)	On all charges: No conviction recorded Fined: $600.00 Time to pay: 28d